Citation Nr: 1805116 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-15 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied and final claim of service connection for degenerative joint disease of the left knee, status-post total arthroplasty. 2. Entitlement to service connection for degenerative joint disease of the left knee, status-post total arthroplasty. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to April 1967 and from February 1971 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. As a matter of background, this appeal previously came before the Board in February 2017, at which time it was remanded so that a hearing could be scheduled before a Veterans Law Judge. In May 2017, the Veteran testified before the undersigned Veterans Law Judge at a hearing held via live videoconference. A transcript of that hearing is of record. The issue of entitlement to service connection for degenerative joint disease of the left knee is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The March 2013 VA medical opinion is new evidence in that it was not of record at the time of the prior denials of service connection for a left knee disability; it is material in that it addresses a criteria of service connection that had not previously been addressed. CONCLUSION OF LAW New and material evidence having been submitted, the claim of service connection for left knee degenerative joint disease is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, given the positive outcome of the below decision, any failure on the part of VA to comply with the duty to notify and assist would constitute harmless error. II. New and Material Evidence The Veteran seeks to reopen the previously denied and final claim of service connection for degenerative joint disease of the left knee. If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. The requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C.A. §§ 5108, 7104(b) (West 2014). Under 38 C.F.R. § 3.104(a), a decision of the rating agency shall be final and binding . . . as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104. A determination on a claim by the Agency of Original Jurisdiction (AOJ), of which the claimant is properly notified, is final if an appeal is not timely perfected. 38 C.F.R. § 20.1103 (2017). A rating decision becomes final one year after its issuance, unless a Notice of Disagreement is filed. 38 C.F.R. § 20.302(a) (2017). If a Notice of Disagreement is filed, and a statement of the case is subsequently issued, a Substantive Appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of the mailing of the underlying rating decision, which ever period ends later. 38 C.F.R. § 20.302(b). In general terms, "new" evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. "Material" evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156(a) (2017). The United States Court of Appeals for the Federal Circuit (Federal Court) has indicated that evidence may be considered new and material if it contributes, "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 115 F. 3d. 1356, 1363 (Fed. Cir. 1998). The Veteran's initial claim of service connection for a left knee disability was denied in a July 1983 rating decision. He did not appeal that decision and it subsequently became final. (See VBMS, Rating Decision, 7/26/1983). He sought to reopen that claim, this time characterized as degenerative joint disease of the left knee in 2008, and in March 2008, a rating decision declined to reopen the previous claim based on a lack of new and material evidence. He did not appeal that decision and it subsequently became final. (See VBMS, Rating Decision, 3/13/2008). The Veteran's claim of service connection for a left knee disability was denied in 1983 because the evidence of record showed that he was diagnosed with a bilateral knee disability prior to his first period of active service, and there was no evidence that his disability underwent any worsening during either period of service. The 2008 rating decision declined to reopen the previously denied claim because the Veteran had not submitted any evidence that his condition, which preexisted service, was worsened beyond its natural progression by service. In March 2013, the RO de facto reopened the claim and obtained a medical review of the evidence as well as an aggravation opinion regarding the left knee disability. (See VBMS, VA Examination, 3/28/2013). This medical opinion is new in that it was not of record at the time of the previous decisions. It is material in that it addresses a deficient criteria of service connection, in this case, whether the disability was worsened by active service. At the very least, as addressed in the below remand, it has triggered VA's duty to assist in providing an adequate medical opinion. See Hodge, supra. As such, the claim is reopened. ORDER New and material evidence having been received, the previously denied and final claim of service connection for degenerative joint disease of the left knee is reopened; to this limited extent, the appeal is granted. REMAND Inasmuch as the Board regrets further delay in the adjudication of this claim, a remand is necessary. Once VA undertakes to provide a medical examination or opinion when developing a service connection claim, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As discussed above, the RO obtained a review of the Veteran's medical history and an associated medical opinion in March 2013. While that opinion was sufficient to reopen the claim based on new and material evidence, the Board finds it inadequate to fully adjudicate the underlying claim. Particularly, although an aggravation opinion was requested in that report, the examiner provided what appears to be an opinion based on direct causation by an in-service knee surgery. Ultimately, the Board notes that there are two separate periods of service in question, therefore, two separate opinions should be included. Further, the examiner opines that the Veteran's bilateral chondromalacia patella, which was the cause of his separation from his second period of service, was caused by events that occurred between 1967 and 1971 (the time between the Veteran's two periods of active service), but does not cite to any actual evidence in support of this statement or explain how such a conclusion was reached. In sum, the Board requests that an actual physical examination be scheduled so that the Veteran can provide a medical history to the examiner, and the examiner can provide opinions on all relevant questions on appeal. Accordingly, the case is REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. The RO should take all necessary steps to obtain any outstanding VA treatment records not already associated with the claims file. 2. Schedule the Veteran for a new VA examination in support of his service-connection claim. The complete claims file should be made available to the examiner selected to conduct the examination. The examiner should conduct an examination of the Veteran's left knee, to include taking a detailed medical history from the Veteran. The examiner should also conduct a thorough review of the Veteran's claims file, taking specific notice of the following medical evidence: * September 1975 medical report detailing a diagnosis of bilateral osteochondromas in 1963, and 1975 diagnosis of meniscal tear (see VBMS, Medical Treatment Record - Non-Government Facility, 3/28/1983, p.5). * April 1965 entrance examination which is silent for knee issues or complaints (see VBMS, STR - Medical, 3/8/16, p. 21). * Evidence of knee surgery between May and June 1966 (see VBMS, STR - Medical, 3/8/16, pp. 13-17). * March 1967 separation examination indicating osteochondroma excision during his first period of service (see VBMS, STR - Medical, 3/8/16, p. 28). * December 1970 entrance examination noting a history of meniscus repair in 1966 (see VBMS, STR - Medical, 3/8/16, p. 32). * March 1971 separation examination and medical board findings concerning a diagnosis of bilateral chondromalacia patella. (see VBMS, STR - Medical, 3/8/16, pp. 1-8) The examiner should then provide the following opinions: * Did the Veteran's present degenerative joint disease clearly and unmistakably pre-exist his first period of active service (April 1965 - April 1967). If so, the examiner should then state whether the Veteran's disability was aggravated beyond natural progression by any incident of service. * Did the Veteran's present degenerative joint disease clearly and unmistakably pre-exist his second period of active service (February 1971 - March 1971). If so, the examiner should then state whether the Veteran's disability was aggravated beyond natural progression by any incident of service. * If the examiner finds that the present disability did not, in fact, pre-exist either period of service, the examiner should state whether the condition was incurred in, caused by or otherwise is etiologically related to any incident of active service, to include his 1966 surgery, and/or his 1971 episodes of locking. All opinions should include a detailed discussion of how any opinion was reached. Citation to evidence of record, known medical principles, and/or medical treatise evidence, where applicable, would be helpful to the Board in adjudicating this claim. The examiner is reminded that the Veteran is competent to report a history of observable symptomatology. 3. Thereafter, readjudicate the claim remaining on appeal. If the benefit should remain denied, issue the Veteran and his representative a supplemental statement of the case and afford adequate time to respond before returning the matter to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs